President Trump recently signed several executive actions and, in doing so, some have argued the president overstepped his constitutional authority and infringed on congressional power. This week’s episode considers those claims in regards to the president's recent actions on coronavirus crisis relief, the post office, and more. It also examines how presidential power has grown over time, how we think about the three branches and the “political” Constitution versus the legal one, and more. Constitutional and administrative law experts Adam White and David Super join host Jeffrey Rosen.
FULL PODCAST
PARTICIPANTS
Adam White is an assistant professor of law at George Mason University’s Antonin Scalia Law School where he also directs the C. Boyden Gray Center for the Study of the Administrative State. He also is a research fellow at Stanford University’s Hoover Institution, and a public member of the Administrative Conference of the United States. He co-wrote an article for National Review with Yuval Levin on the recent executive actions called “The Return of Pen-and-Phone Constitutionalism.”
David Super is Carmack Waterhouse Professor of Law and Economics at Georgetown Law where his research focuses on Administrative Law, Constitutional Law, Legislation, and more. His piece “Inadequate, Unworkable, and Unlawful: The Trump Unemployment Aid Program” is available on the Balkinization blog.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
ADDITIONAL RESOURCES
- The Return of Pen-and-Phone Constitutionalism by Adam White and Yuval Levin in National Review
- COVID-19 and the Costs of Unsteady Administration by Adam White for The Bulwark
This episode was engineered by Greg Scheckler and David Stotz and produced by Jackie McDermott. Research was provided by Grace Zandi and Lana Ulrich.
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TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
Jeffrey Rosen: [00:00:00] I'm Jeffrey Rosen, president and CEO of the National Constitution Center. And welcome to We The People, a weekly show of constitutional debate. The National Constitution Center is a nonpartisan nonprofit chartered by Congress to increase awareness and understanding of the constitution among the American people. President Trump recently signed four executive actions related to COVID-19 relief, and some have argued that issuing these orders and memoranda the president oversteps his constitutional authority.
Today we'll dive into whether or not these actions were legal or constitutional with two of America's leading experts on constitutional and administrative law. White: is an assistant professor of law at George Mason University [inaudible 00:00:53]law school, where he also directs the seaboard and grace study for the center of the administrative state. He's also a research fellow at Stanford University's Hoover institution and a public member of the administrative conference of the United States. He co-wrote an article for national review with [inaudible 00:01:08] on the recent executive actions called the return of pen and thumb constitutionalism. Adam, it's great to have you back on the show.
Adam White: [00:01:18] Thanks Jeff. It's so great to be here.
Rosen: [00:01:20] And David Super is Carmack Waterhouse, professor of law and economics at Georgetown law where his research focuses on administrative law, constitutional law legislation, and more. His peace inadequate unworkable and unlawful the Trump unemployment aid program is available on the Balkanization blog. David, thank you so much for joining.
David Super: [00:01:42] Thanks for having me.
Rosen: [00:01:44] Let's begin with the unemployment's executive action. This was a presidential memorandum about aid to the unemployed. It purported to fill the gap created by the exploration of the emergency supplemental unemployment insurance benefits of $600 a week in Congress established in the CARE act. Adam, in your recent piece with [inaudible 00:02:09] in the national review, you argued that you were agnostic about whether or not the unemployment action was illegal and violated, uh, what you'd call the legal constitution. But you said that it did violate the political constitution. Uh, explain that argument.
White: [00:02:28] Well it all comes down to context. Um, President Trump, didn't just issue these executive orders and presidential memoranda out of the blue. They came in the context of the ongoing and seemingly stalemated congressional and administration negotiations and negotiations between Republicans and Democrats, between the house, the Senate and the White House over what to do next and the ongoing economic, uh, relief that's needed amid the COVID-19 outbreak. And instead of negotiating to a final legislative conclusion, President Trump just announced that he was doing this on his own, um, on a variety of subjects. But again, especially in terms of trying to extend unemployment through sort of a convoluted approach with the, with FEMA grants under the Stafford Act and then the extension or the deferral, I'm sorry of, uh, uh, payroll tax payments.
The reason why we think we're a little agnostic on the law, because maybe David has more fixed thoughts on this, but little agnostic on the law because we wanted to focus on the political constitution that even if the administration can find it colorable legal argument, justifying its actions under the statute, statutes that are so often written so broadly, the fact is this is a presidential effort to short circuit, a legislative process to assert in some ways of power of the purse of his own, but at the very least distorting the ongoing legislative negotiations that should result in law and funding trying to either go out alone or to so dramatically skew the political table going forward, such as through this payroll tax deferral that are really just going to distort whatever legislative process [inaudible 00:04:11].
Rosen: [00:04:11] David, your views on the modality and the unemployment measure are clear in the headlines, the Balkanization posts, inadequate, unworkable and unlawful, uh, the Trump unemployment aid program. Uh, you make a multi-part arguments about why the president's actions are unlawful under the Stafford disaster relief and emergency assistance act. If you could, uh, explain why you think the program is unlawful, that'd be great.
Super: [00:04:37] Um, certainly. The program, uh, is in essence, uh, violating several express conditions in the Stafford Act. The Stafford Act says you can use FEMA money for unemployment, but only for people that aren't covered by, uh, staying on unemployment programs and only up to the state maximum. Uh, what the president is doing is creating an unemployment program for people who are covered by state programs, uh, and whose sole purpose is to exceed the maximum. So they're explicit requirements and the Stafford Act, uh, that the president is violating. In addition, the Stafford Act says that if you give money under the section the president is using the states have to pay a quarter of the cost. States can't afford it so the president is going forward with the federal government paying the whole cost. That's also illegal.
Rosen: [00:05:33] Adam, as you hear David's arguments and they're numerated in detail in his thesis, you yourself right now, said, you haven't dug into the statutory arguments, but what are the chances of a court agreeing with David and striking down the unemployment executive action?
White: [00:05:52] Well, anytime you talk about the courts, it's important to focus on what will actually happen in implementation. Um, both the executive orders they're written in pretty broad terms, and we have to see whether the Trump administration actually attempts to carry out the program along the lines that David suggested, um, actually going forward and breaking the, breaking the specific requirements of the Stafford Act. We'll see if that happens. I mean, so many of these things that have been done through executive orders and other executive actions are really more for show the shape of political mood, especially in the run up to the election. So I'm always wary about talking about the courts before we see how things actually play out is only then when we see whether the courts actually have a case or controversy before them, whether there's actually litigants with standing. And then once they get into the statutory arguments, seeing how these things are actually applied and seeing whether there's any room for a colorable legal argument, to which the courts might give deference pursuant to the many doctrines under which courts too often defer to administrative action.
That's why I was sort of holding my punches back a little bit on the specific legal arguments. David makes some very, very good arguments and they may well prove to be true. Um, I have no reason to doubt that they would actually, um, but I'm waiting to see whether the Trump administration's implementation actually goes so far as the executive orders themselves suggest they might.
Rosen: [00:07:14] Thanks for that. David, as you discussed in your pieces, the president shifted his description of the program several times and each time raised new statutory difficulties. Um, describe what those difficulties are and are the courts well-equipped to review presidential actions of these kind of given the possibilities for, uh, constantly shifting enforcement.
Super: [00:07:42] Well, I- I think Adam's points are well taken. Uh, this very well may not play out in the courts. Uh, one thing that's likely to happen is because this program is unlawful, is the government accountability office or the inspector general is likely to declare that and make the states pay the federal government back the money that will create a whole different kind of crisis. I think the threat that that would happen is probably going to cause a number of states to not implement the program because they can't afford to pay the federal government back. So that's a lot of ways that it can happen.
It also could affect the implementation by federal officials who face criminal penalties if they dispense money, that was not appropriated by Congress. And this money was not appropriated by Congress for this purpose. So there likely are going to be individual federal civil servants that refuse to participate in the implementation of this and that could lead to some of the kinds of changes that Adam talks about.
Rosen: [00:08:44] Adam I hear both of you saying that uncertainty about implementation may be the unemployment program, not to be implemented. Similar questions arise with the presidential memorandum that suspends the payroll tax payments for some workers through the end of the year, although it allows workers who earn less than $8,000 a month to defer their tax payments from September through the end of December, many companies have already said they won't implement the program because of fears about implementation and feasibility. Tell us more about that program and what tells us about rule by executive order?
White: [00:09:24] Well this is a point that [inaudible 00:09:26] and I raised in the national review article that you mentioned, and I followed it up and at least for the bulwark, which I called the costs of unsteady administration and this theme that you identify for both the unemployment benefits and for the payroll tax deferral. We go to the question of steady administration or the lack thereof. What President Trump has done in these actions has created frameworks that are just unworkable due to the uncertainty they're unworkable both within the administration and within the states and the private sector actors on which these frameworks rely for the actual implementation. Employers don't really know what to do with respect to this payroll tax deferral, because the whole program really is, is presuming as a political matter that it will force Congress's hand and Congress will ultimately weigh these obligations that are stacking up. Either that or the employees that lawyers are going to be on the hook right after Christmas for these deferred tax payments. It's like we're running up a national credit card on our credit card bill on our payroll taxes.
And so we've already noted that there are legal problems surrounding these orders. And as we alluded to earlier, there's just this basic question of the political constitution, the right roles of the president and Congress. This last part goes to steady administration. I think it's so important. The best thing a president can do at a time like this is take uncertainty and make it into something more certain, both the uncertainty of the law and the uncertainty of the facts. The problem with these orders is that it gets it precisely backwards. It takes things that are already fairly uncertain, both the facts and the law and explodes it and even greater uncertainty about how it will be implemented. I think that's a real constitutional problem. Again, not a legal constitutional problem, but a problem with a basic political constitution.
Rosen: [00:11:24] Uh, David, you have described the problem by noting that the basic problem here is that the president is rejecting Congress's power over the purse and he's also said that the action was deeply disrespectful, both in Congress's power of the purse and that of the state legislature. Given congressional paralysis, inability to ask, is there anything that Congress can do about this?
Super: [00:11:37] Um, the Congress is of course divided. Um, but on some things there's broad agreement, um, both Republicans and Democrats in Congress have overwhelmingly opposed cutting the payroll tax, because that would be fun, social security and Medicare. So the, one of the issues that president has taken on here is one on which has almost no congressional support. So the notion that this is somehow going to lead to the abandonment of the payroll tax, uh, is politically implausible. Um, that means that we will have the worst case scenario that Adam describes with everybody being socked with big retroactive tax payments right around the time they're doing their holiday shopping. Um, this is a broader problem of not reaching agreement. The Democrats don't like the offer the Republicans have on the table, the Republicans don't like the offer the Democrats on the table, both of them are going to have to swallow some things that are very unpleasant, but there is a path to agreement. They did this four times in the spring. They can do it now.
Rosen: [00:12:50] Adam, Ben Sasse, Senator Sasse has engaged in a Twitter discussion with President Trump, uh, where he says no president, whether named Obama or Trump or Biden or AOC has a unilateral power to rewrite immigration laws to cut taxes or to raise taxes, this is because America doesn't have Kings. Do you think that in practice, this Congress will Rouse itself to assert its constitutional authorities in the face of presidential unilateral action. Uh, and if not, what does that say about the nature of the constitutional conflict?
White: [00:13:25] No, I don't think that Congress is going to intervene anytime soon sadly. I do think that when we get into December, um, if there is a looming crisis of payroll tax bills that might force Congress's hand not to assert itself, but to sort of acquiesce to the mess and try to clean it up. We'll see. I mean, it's gonna be such a complicated time, especially in the middle of the presidential transition. One of the challenges in getting Congress to act in this dispute in any other dispute we saw with the border wall, fence yourself with immigration is that everybody in Congress knows that the real pressure release valve is the precedent. This reminds me a lot of either, you know, like I said, both the border wall funding debates, the debates over immigration law, you saw under President Obama he famously said, Congress won't act therefore I will. I think actually, I mean, that's, that's true. All presidents tend to say something like that. I think the reverse or something like the reverse is also true. It's the, because we know presidents act Congress won't, if you're a Republican in Congress, why would you venture any kind of compromise on a policy when you know, the president is just going to go and try to do whatever he wants anyway. And if you try to compromise in Congress, you'll probably get primary.
If you're a democratic Congress, why would you try to meet the Trump administration and Republicans Hathaway, knowing that you're probably not going to get a deal, the president's going to go act unilaterally and then you're going to face your record will, will face the threat of a primary challenge. It is precisely because the president could just walk away from the table but these discussions in really don't ever culminate in anything when we most need them to compromise. Um, and say that that any way that we can limit the president's ability to do that through law, through the courts through politics is a good thing because it would restore the hydraulic forces within Congress to actually produce the sorts of compromises that we need today and that the founding fathers anticipated the Congress would do. But until then we just have this fundamental lack of ambition and James Madison put it in Congress to actually strike these, um, these legislative compromises.
Rosen: [00:15:29] David, you have argued that there was a president who used executive action more appropriately, and that was president Reagan. Tell us about his model.
Super: [00:15:39] Uh, president Reagan's actions were very strong and very effective and have stood the test of time, but they were very different from what President Trump has just on or for that matter from a lot of what President Obama did. Uh, President Reagan stayed within the contours of his role as president. He didn't try to control the purse the way Congress does. He tried to control the executive branch. He passed sweeping executive orders, changing the way agencies can issue regulations, changing the way agencies can prepare budget requests. Uh, and those have been in place and have governed both democratic and Republican administrations ever since. He changed the way we talked about regulations and about the budget for good, but he did not, uh, try to take power away from Congress. And that's the huge departure here.
Rosen: [00:16:36] Adam, when did the effort by presidents to take power away from Congress ramp up? You know, in your piece with you've all 11 that was especially having in the Obama era with the assertion of authority over immigration, with the deferred action for childhood arrivals and the deferred action for parents of Americans and lawful permanent residents, DACA and DAPA. Did it begin with Obama or did it start earlier than that?
White: [00:17:01] No, it certainly didn't begin with Obama. I'd say the most recent debates on whether president's can make policy through non enforcement of laws, um, or the, the deferral of payroll tax here and the Obama administration we saw, um, things like, again immigration non-enforcement, marijuana non-enforcement I think that's an interesting, fairly modern wrinkle, but so much of this is timeless. Teddy Roosevelt had a very broad view of the presidency that he could basically do whatever he wanted and most of it was forbidden in fact that he needed to do it as a steward of the constitution for the people. Obviously Franklin Roosevelt faced challenges over some of his initial pre World War II actions Lend-Lease and so on. And we saw the Truman administration and the steel seizure case freedom, certain power. These are timeless things. I think that what we see is each presidency takes the precedents that were laid down by previous presidents and finds ways to expand from build on them. And that's one of the real challenges here is that there really isn't anything new under the sun here, it's just the constant expansion of smaller precedents or even bigger precedents that were laid down in the past.
Rosen: [00:18:11] David, as Adam suggests, there's been a fluctuation in the number of executive orders issued by president. It was about one per year in the George Washington, uh, uh, really leaped up under Lincoln, uh, to 11 per year, and then went down again to the progressive era where it goes up to 144 a year and 181 a year, uh, under Roosevelt, uh, Theodore Roosevelt, um, and then Franklin Roosevelt's flags still further. And then it goes down again and the recent numbers have been around 40 a year, uh, from watching, uh, president Trump. So is this part of a historical pattern of we're just doing what Franklin Roosevelt and Theodore Roosevelt did, or is the current use of executive orders different in an age of polarization when Congress seems especially unable to act?
Super: [00:19:03] Uh, I think there is a fluctuation, as Adam says on this. I think the counts of executive orders are a little bit, uh, deceptive. Sometimes there's an executive order, um, to declare this national potted plant week, um, that doesn't really expand, uh, presidential power very much. Uh, there are other executive orders that are, um, calling for attention rather than actually doing anything. The president signed the executive order, uh, saying that, uh, federal agencies should look and see how they can help people with evictions and foreclosures, but it didn't actually do anything ironically of the four actions he signed the executive order the only one that was truly an executive order was the only one that really didn't do anything.
Um, I think it, it really depends on the relationship between the president and Congress on the willingness to negotiate on these issues. And on perceptive that particular areas are broken. President George H. W. Bush concluded that welfare policy was broken and started using obscure waiver authority to largely rewrite the welfare laws. President Clinton turned that into an industry. Uh, President Obama as was mentioned, uh, concluded that immigration law was broken and that he would start rewriting that. President Trump has turned that into an industry. Uh, these things happen when there is a perception that one area of law and other, uh, is not functional and the presidents don't have the ability or the desire to work out a compromise with Congress.
Rosen: [00:20:45] Adam, you called on Congress to pass laws for [inaudible 00:20:50] the president, but it doesn't look like they will soon. The courts have been quiet in the face of several of these executive orders, including President Trump's effort to build the wall. As a result third commentator Ross has said that far from the framers system where Congress is the primary engine of legislation, we now have two and a half branches where Congress occasionally [inaudible 00:21:15] itself to pass a budget, but doesn't do much else. And we have rule by executive order and check by the courts. What do you make of that thesis and what can we do about it?
White: [00:21:24] Well, I think we should always avoid hearkening back to the founding era as one of congressional supremacy. Obviously Congress is the branch in article one of the constitution. And as I said, you know, the framers did expect Congress to really make policy through a, uh, checked and balanced approach. But presidents have always had enormous legal and practical power. When Madison and Hamilton were debating over the neutrality, the neutrality policy with England, um, Hamilton had a, a phrase I've always loved. He said a president to create an antecedent state of things. We call it a first mover advantage. The president can jump in and take action that changes the ground upon which law- legislation or other policy fights will later happen. That's always happened. And I think we need to take account of that in our, in our system, but it is true. I think right now that Congress is at a low ebb. The courts are, have taken a, a, um, a measured approach to this. I've actually been a fan of the way that chief justice Roberts has calibrated his approach in a variety of cases, ranging from the travel ban case to the more recent census and, uh, DACA cases. And I've written on that as well.
And I wanna make very clear here if I may, I actually think of the executive action could be a very, very good thing in our constitutional system. For the reason I alluded to earlier steady administration. So many statutes are written in such open-ended terms they give agencies practically unbounded discretion. That's really a hard, it's hard for all of us to organize our lives we don't know what the law means to the extent that the president can take a broad statute and try to focus agency discretion in lawful ways. I think that's a good thing. And I've written about, about that. I think the dangers are the ones that David has alluded to that when a president uses his executive power to undermine the power of the purse or to go beyond the statute of beyond the constitution, that creates a real challenge. And it's hard for the courts for Congress to play catch up.
So I think in the long run, the best, the best routes for reform, and we can hope that Congress will- will- will reassert itself. And maybe it will. It did in the 1970s, some good ways, some bad ways. Maybe a president will restrain himself. That's happened from time to time and I hope it can happen again. But I hope also that the courts will find ways to promote steady administration through a forms to administrative law, through reforms, to the non delegation doctrine and just a focus, the range of, or to narrow the range of discretion the presidents have for unilateral way.
Rosen: [00:23:51] David, that reference to the courts, resurrecting the non delegation doctrine and limiting Congress's ability to delegate vast amounts of authority to the president of course is hotly contested a progressive say, it's an attempt to reverse the person you're dealing with ministrative state by judicial fear, uh, what do you think of it?
Super: [00:24:16] Uh, I think that Congress has learned, uh, in the current administration and, and arguably in the two or three before it that the broad grants of power given to the president are invitations to trouble. The assumption is no president would ever go beyond what we intend here and that turns out not to be the case. Uh, Congress has given the president enormous flexibility in the defense area because they can't anticipate what a foreign adversary might do. The president used that to build a border wall. I think the likely resolve is that we're gonna see president's hands tied more, and we may get into a crisis situation where a president really needs that flexibility. And it isn't there anymore. Same is true in the disaster area where the president is used very sweeping authority in my view, much more than Congress granted him. And the result is likely either by Congress or by the courts to pull that way back. And in the future, we may not be able to respond as well to disasters.
Rosen: [00:25:22] Adam, do you think that the debate about the scope of the administrative state in the courts will be changed by the Trump experience? And if the Democrats take the White House and Congress, will they be any more sympathetic to judicial restraints on the scope of the administrative state from there now?
White: [00:25:42] I mean, the, the wonderful thing about our system is that when we change states we change our views. And I'm sure that that, um, Democrats who are wary of executive power now, if, if, if president, if [inaudible 00:25:53] Biden becomes president Biden, they'll become more amenable to executive power and vice versa. And I don't think that's necessarily the worst thing in the world. It's a little bit hypocritical for everybody, but hypocrisy is the attribute that vice based of virtue, this is just what we have in our system. Um, I think that in the courts, hopefully everybody is learning from this experience. Um, seeing the fear, what might seem theoretical downside. So executive power becomes much more concrete when we see the executive power abused in specific cases. And so maybe that will inform Chief Justice Roberts and the others, uh, as they think through ways to recalibrate judicial review.
And I wanna say since I mentioned the non delegation doctrine, I don't know whether it's even feasible to have a real non delegation doctrine. It might risk standard list, judicial decision making, and I'm against that too. Um, even things, the all major rules doctrine are ways to reinterpret statutes to narrow them. That might be a good thing. And I think that might be where things end up. Chief Justice Roberts, uh, cabinet Taegan really seem to be thinking, and this is me projecting, but they seem to be thinking in terms of steady administration, not wild changes to the administrative state, but just judicial doctrines that can help recalibrate the pace of the tempo, the breadth of administrative action making agencies act a little bit more thoughtfully, a little bit more transparently, a little bit more steadily. That would be a good thing. And I would like to see Chief Justice Roberts keep moving forward on that.
Rosen: [00:27:21] Uh, David, back to our current vexations, you wrote a piece yesterday in the Washington post. The headline was, even if Congress rescues the post office, Trump, can you block the funds through tools that were originally designed to prevent overspending? Tell us about that [inaudible 00:27:37].
Super: [00:27:37] Yes. Um, the president has a lot of powers that were granted by Congress to slow down or stop spending. And the idea here was that we didn't want money going out the door where thoughtful people believed it was no longer needed that we want money spent, uh, wastefully if the purpose for which it was provided is disappeared. Um, but the problem is that it's very hard to judge when money is not needed and when it still is, and these are powers the president has to block money from going out the door. And if Congress provides money to rescue the post office so that it can start delivering medicine on time and ballots in November, there's a chance for the president will use these powers to keep the money from going out the door just as he did to block the money from going to Ukraine when he became dissatisfied with that county's president.
Rosen: [00:28:33] Adam, David gives concrete examples. He says that if the final relief legislation includes money to reverse recent post office, uh, reductions, the president could just instruct the office of management and budget to wait a month to a portion the money a month after the date of enactment could take us within a month of the election and mail putting will already have begun couldn't might courts can join that on the grounds that it has the illicit motive trying to intervene with the election, or court's not inclined to second guess motive when it comes to spending decisions.
White: [00:29:06] I hate to answer that's a hard and important question with a non-answer, but it's so hard to say, right? Because the time is going to be everything. If President Trump takes action or inaction at a very late date, that seems to upset all these arrangements that Congress is making well, a federal district judge could jump in with a injunctive relief to try to force the president's hand, that it might be hard for the administration to then undo on appeal in time for the election. It really is going to come down I think the precise timing and precisely how tightly Congress writes the statute. Um, David's pointed to such a difficult problem in administration. Congress can use its power of the purse to restrain constrain presidents. It's very hard for Congress to use its power of the purse to force the president's hand. It's a lot like pushing on a string. It's really hard to get anything accomplished that way.
I'd say it's, I mean, to state the obvious what a terrible shame that you have to even talk about this, I'm not sure whether the post office crisis is as bad as, as, um, in fact, as bad as people are fretting right now. But the fact that President Trump was saying the things that he's saying means we need to be on high alert. And it's one of these areas then where I think federalism really has to take a stance and individual States really need to step up and find ways to make these elections work without presuming as sad as it is to say that the mail is going to be delivered on time.
Rosen: [00:30:31] David, number of states filed suit against the post office and the president for trying to delay the ballots before a more recent policy a while back, will those suits proceed and how well equipped are courts to decide these very time sensitive election related issues?
Super: [00:30:52] Well, I think it's unclear how much of the policy has been reversed. Uh, the postmaster has said that he's not going forward with new initiatives for the election by the apparently an awful lot of letterboxes have been removed as sorting machines have been taken online and personnel policies have changed. So, uh, the reports of mail delays are already very serious and the damage may be done. Uh, court certainly can move very quickly. They are equipped to move very quickly, whether they think that's prudent is unclear. And I have little faith that the courts would want to take over administration of the postal service if the postmaster is really determined to slow things down, they're probably not going to be able to do much about that.
Rosen: [00:31:41] Adam, the Supreme court and the chief justice has been skeptical of last minute judicial interventions in elections. They've evoked the so called Purcell principle and Wisconsin case Republican national committee versus democratic national committee, which disfavors judicial intervention of a last minute. Um, what does that say about the ability of the courts to enforce constitutional norms regarding elections on short notice and how well equipped are our courts to restore these balances to the [inaudible 00:32:18]?
White: [00:32:18] Well, this is an issue that goes beyond just the election, the electoral context. Chief Justice Roberts has seemed very, very wary in recent years of any kind of injunct- preliminary injuctive relief either coming from the Supreme Court itself or coming from the lower courts time and time again. We've seen it most recently in the lawsuits COVID-19 restrictions on church attendance. The chief justice just seems very, uh, very much inclined away from in preliminary injunctive interventions. And I think my friend, Jonathan Adler from case Western reserve is written on this. I'd say that we shouldn't count on the courts to make any abrupt changes at the last minute, not of the Supreme Court level, at least. Um, the lower courts have tried and tried again to intervene. I think back, uh, chief judge or justice Ginsburg has tried to reframe the Purcell principle as a principle against Supreme Court intervention against lower court intervention. So we'll see how that plays out.
But again, I think right now, this lawsuit by the state AGs is a good reflection of where we are. The state AGs are filing lawsuits. I mean, lawsuits aren't necessarily a bad thing when I was a lawyer filed plenty of them myself, but at this time, what we really need is political action through the other institutions of government, beginning with the state legislatures and the state governors to just try to make the changes on the ground that are necessary. We just can't count on, on, on lawsuits, especially when they're so, um, complicated by these Prudential doctrines. Like for [inaudible 00:33:49].
Rosen: [00:33:49] David, there are a series of other presidential actions known as presidential emergency action documents or PEADs executive orders, proclamations, and messages to Congress that are prepared in anticipation of a range of emergency scenarios. They, uh, include as well, we know in recent past authorization, detention of enemy alien suspension of the writ of habeas Corpus. And there have been reports recently that the president is issuing, uh, feats, uh, whose topics we may not know about as President Trump's stated in March have the right to do a lot of things that people don't even know about. Uh, are there any feats that we do know about and what should we be looking for in this important area?
Super: [00:34:37] Well I think for all the reasons we've been discussing, we're not going to see this stuff. Now we're going to see this stuff in late October or early November, or indeed after the election. Um, the courts would have difficulty intervening now, but if something were playing [inaudible 00:34:54], they probably could. If you do something at the very last minute, uh, then the president is essentially, uh, flying solo. So I can't speculate on what the president will be doing. The president has clearly asserted powers in a number of areas that the courts have found that he doesn't have, or the plain reading of the statutes indicate he doesn't have. So I would not assume that what we will be seeing are things that reflect actual powers the president has so much as powers the president wishes he has, or is going to try to assert at the last minute he has.
Rosen: [00:35:30] Thanks for that. Adam, Elizabeth Gray team recently wrote a piece for the Atlantic Kansas sea battled the side about the alarming scope of the president's emergency powers. Does the fact that these orders are secret exempt should it exacerbate our concerns about unchecked executive authority or are these appropriate instruments?
White: [00:35:51] Yeah, I'm always wary of condemning secrecy in the executive branch because of course that was supposed to be sort of a foundational virtue of the executive branch, right? Alexander Hamilton, federal 70 energy and the executive because the executive branch can act with greater degree of secrecy and dispatch and swiftness than Congress can. And so I would never denounce presidential secrecy. I think though that in an era when presidents have been bested with so many emergency powers, if somebody statutes emergency statutes, that they can trigger, seemingly all of them, um, and the breadth of discretion under those statutes gives them something verging on legislative power. We need to be wary of presidential secrecy. And so I'd say this is an area that hopefully in the aftermath of, of these disputes in a future administration, whether it's a year from now or four years from now, um, Republican or Democrat, there'll be a reconsideration of these things. Again, using this experience in recent years, as a case study in what can go wrong or what can go overboard and unilateral executive action. Um, but for now I think we have to take each case as it comes.
Rosen: [00:36:59] David, how norm breaking has President Trump been in his use of executive orders? In the end, we've talked about the fact that this has been a long standing trend, has the president sparked in worse than his bite or is he actually doing stuff that other presidents can do?
Super: [00:37:17] Uh, this president has jumped much farther than prior presidents. Uh, there are some precedents for what the president has done in some areas, but he's expanded on them enormously. I think a happy outcome from this is that the expansions of presidential authority that this president has made will wake us up to some of the creeping expansions under his predecessors and cause us to do the kind of reconsideration Adam describes where we determine whether we really need to give this president any president that much power, if the election results in a democratic president and a democratic Congress, it's possible, the Democrats will be less, uh, committed to executive power. The Republicans certainly won't want a president Biden to have a lot of power. And we might have a moment for a bipartisan agreement, uh, to carve some of these things back, which I think would be good for everybody.
Rosen: [00:38:21] Adam same question to you, how norms breaking has the president. Then, you know, if in some cases as spark has been forcing this bike, but do you feel those bikes been beheaded in some areas that have transgressed that of other president in one, what particular actions would you say the most?
White: [00:38:34] Well Jeff, you mentioned the bark being worse than the bite. It is worth focusing on the bark first. There's one of the things that I think we've actually learned from the Trump experience is that the bark matters. That we can say, well, these are just words, not deeds, but when you see a president there's rhetoric so far out pacing, both the legal constraints on him, but also is the, the, the lengths to which he actually wants to go in policy. There's this juncture between the rhetoric and reality can actually really poison the reality itself. What I mean by that is when President Trump threatens to do these things. I mean, even as I was downplaying, the postal emergency people are claiming President Trump himself has said, well, maybe I will attach funds to the election process in ways that could be really disastrous. Everybody has to prepare accordingly. Everybody has to get their backs up.
When you see the sort of political arms race, the political, the presidential rhetoric exacerbates to the point where you see news stories about war gaming out, how the elections might go. And when Democrats start thinking about the worst and talking about it, Republicans in turn are going to think about the worst, all starting with President Trump's rhetoric. And so I think one of our takeaways from this has to be that you can't draw a line between what the president says and what the president does, both of these things are important, and the framers understood that. That's why they said, and we've talked about in the previous podcast a long time ago about why Republican virtue, constitutional virtue is so important, especially with respect to the presidency.
And so I don't think it's, I think it's really wrong for the president's supporters to say, well, these words don't really matter. I'm just focusing on actions. The words have had real consequences now as a matter of law, where has the president gone the farthest? I obviously the Ukraine scandal, um, and which not coincidentally it wasn't electric electoral political scandal, right. Actually trying to withhold aid and the leverage that aid for his own political fortunes. I think it was really, was really ruined us and deserved all the attention and [inaudible 00:40:44] to God and even more so that's where I would focus my attention on.
Rosen: [00:40:48] Uh, David, we just recently had a bipartisan Senate report describing the 2016 Trump campaign interactions with, uh, Russia and Ukraine. And there was surprising bipartisan agreement that there had in fact, been extensive contacts between the campaign and Russia, is that an example of the oversight process working and why did that work in a way that other attempts of congressional oversight?
Super: [00:41:19] I think that worked in part because the evidence was so completely overwhelming and to refuse or reject that evidence after having looked into it, the Republican senators would be marking themselves as complete hacks and they were unwilling to do so. In lots of other areas, there's been far less evidence and much greater willingness of each team to stay in its own side of a line and, and stand up for its own camp. I also think that the Republican senators that supported that rapport maybe facing, uh, considerable criticism within the party, perhaps primary challenges. And I also think it's significant that while that is a report, it is not an action. It doesn't have any consequence on whether something like this or something worse could happen.
Rosen: [00:42:15] Adam what do you make of the report? Does that suggest that Congress is better equipped to do fact finding than actual over [inaudible 00:42:22]?
White: [00:42:23] Well, I haven't been able to read the report in full I've only seen the news accounts of it. But I'm glad that they've brought this process to a completion and really tried to shine a spotlight on these things. And the fact is that these days for a long time now Congress has been better suited for better and for worse of being ombudsman for the executive branch, rather than an actual legislative branch, I wish they would do more legislating, but the oversight is important, especially when it's tied the hooks of Congress has specific powers, whether it's legislative powers, power of the purse impeach from power and so on. And so I'm- I'm- I'm glad that they brought this through. I think one of the takeaways from this and just based on the early news reports is that it was a mistake to get too tied up on specific catchphrases like collusion, right?
I, it's not clear to me just based on the latest news reports and I could be totally wrong about this once I read the report, but it's not clear to me that, but the Senate panel, Senate committee actually found direct collusion coordination between the Trump administration started the Trump campaign and the Russian government. These things always get so hazy, especially because we don't know who's really part of the Trump campaign and didn't give them all the time. Or we didn't really know it was part of the Russian government at any moment in time. I think the key takeaways are Russia's interference with our election and the Trump, President Trump's own sort of willingness to invite foreign interference in- in the election most famously where he said to Russia go hack Hillary's email servers. Um, that is I think, a shameful legacy of the 2016 election and hopefully the Senate report has reminded us about the protections we need to take against them.
Rosen: [00:44:06] David, let's, uh, close where we began. I was struck by the precision of your legal analysis of the unemployment border. And there actually are legal constraints when one digs into them. But how would you characterize the president's ability to take executive action and assert some kind of legal peg given the difficulty that people have in, uh, digging into law in the moment? I guess I'm asking how effective is our congressional statute saying actually restraining presidential action?
Super: [00:44:41] Well, I think this comes back to the point Adam made at the outset, which is that we have a legal constitution and a political constitution. Uh, as a practical matter, our legal system cannot stop a fair amount of extra legal action the president does. Historically we've had political norms against it, occasionally buttressed by the courts. For example, when President Truman thought he could take over the steel industry, uh, but often the supportive by the public and their willingness to vote out people who seem to be disregarding the constitution and disregarding the limits on their authority. These days I'm not sure we have a functioning political constitution. If President Trump loses, I don't think it will be because the executive overreach, I think it will be because of the economy or the, um, uh, the, the pandemic or, um, dislike of him personally, but I don't think it will be because of the overreach and we badly need to get into a situation where politicians learn that they cannot continue to function if they exceed, uh, the accepted and constitutional balance on their power.
Rosen: [00:45:54] Great. Well, that's a good place to [inaudible 00:45:58] closing arguments and Adam, the first one is to you, do we have a functioning political constitution? And if not, what can we do to resurrect it?
White: [00:45:58] I- I'm not throwing in the towel on a political constitution. I still think it's robust. We have dysfunctional institutions within that, within that constitution. Maybe I'm splitting hairs here. I think that we'll always have energetic presidents and that's often a good thing. And I think the challenge now is reminding both the courts and Congress, especially Congress of how it is supposed, how, what its original value is in our constitutional system and how they can return to that. And the states as well, everything for the last hundred years or more has constantly been reorganizing itself about around the creepy expanse of executive power, how we understand the role of the States, the Congress and the courts. And I think we're engaged in a generational or longer term, a reconstruction reconstitution of those other institutions. But the political constitution, I think is still valid in part because Americans by and large do value the, the need for these institutions. We at any time, like some more than others. But I think the, I still have faith in the American people and in American traditions so that people embody that these things are not lost. They won't be lost.
Rosen: [00:47:19] David, last word to you. You just said that you don't think we have a functioning political constitution. Uh, what can we do with anything to resurrect it?
Super: [00:47:28] Um, I think that we need to appreciate the cost of losing this. Uh, we will fight with one another. We will not agree with one another, uh, but we need to keep those fights in perspective. And we need to understand that the scorched earth approach, the winning is everything approach, uh, is ultimately going to tear down a country and tear down the means of achieving your agenda or mine. Uh, we haven't gotten to that point yet. Uh, I'm hoping that after, uh, January, that things will quiet down some and there'll be a longer moment of reflection.
On the Trump administration, but on the steps we took to get there, I would certainly start at least as early as the Clinton administration perhaps earlier.
Rosen: [00:48:17] Thank you so much, White: and David Super for a vigorous engaged and really illuminating discussion of the political constitution, the legal constitution and President Trump's recent executive actions. It's always wonderful to learn from both of you, Adam, David, thank you so much for joining us.
Super: [00:48:36] Thanks very much for having me.
Rosen: [00:48:39] Today's show was engineered by Greg Sheckler and produced by Jackie McDermott. Research was provided by Grace's Andi and Lana Orrick. We The People friends as your children and loved ones are learning at home during this challenging time, the National Constitution Center is providing a series of free live online classes on the constitution every Monday, Wednesday, and Friday, my colleagues and I are teaching the constitution. It's noon and 2:00 PM. The classes are offered for middle school and high school and college students, as well as adult learners. If you'd like to tune in, it's so meaningful to be able to offer these free classes on Zoom. It's exciting to see the interactivity of the questions from the students. We reached 30,000 students during the spring period from March until June, and we're really excited to relaunch the classes. So please sign up your students, share them with your teachers and check it out yourself. It is a very meaningful opportunity to use virtual technology to spread constitutional light.
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